G.L.C. v. State, CR-03-1702.

• Decision Date: 18 March 2005
• Docket Number: CR-03-1702.
• Citation: 910 So.2d 163
• Parties: G.L.C. v. STATE.
• Court: Alabama Supreme Court

Page 163

910 So.2d 163

G.L.C. v. STATE.

CR-03-1702.

Court of Criminal Appeals of Alabama.

March 18, 2005.

Joseph D. Quinlivan, Jr., Mobile, for appellant.

Troy King, atty. gen., and Robin Blevins Scales, asst. atty. gen., for appellee.

McMILLAN, Presiding Judge.

On March 21, 1997, G.L.C. pleaded guilty to unlawful possession of cocaine. The trial court sentenced him, as a youthful offender, to serve three years in the custody of the Department of Corrections. The court then suspended the sentence and placed G.L.C. on probation for three years.

The case action summary reflects the following:

(1) On July 13, 1998, G.L.C.'s probation officer filed a delinquency report. The circuit court issued an arrest warrant on July 14, 1998, but G.L.C. was not arrested until September 14, 1998. He remained in custody until December 12, 1998, when the delinquency report was withdrawn and the court permitted him to remain on probation.

(2) On March 14, 2000, G.L.C.'s probation officer filed a second delinquency report. The court issued an arrest warrant on March 17, 2000, but G.L.C. was not arrested until July 27, 2001. He remained in custody until August 24, 2001, when he admitted at a revocation proceeding that he had violated the terms of his probation. The court ordered him to serve time in the city jail until October 25, 2001, and ordered his formal probation "extended for a period of ONE (1) YEAR from the date he is released."

(3) On July 10, 2002, the appellant's probation officer filed a third delinquency report. On October 4, 2002, the court ordered the report withdrawn. The court also ordered G.L.C. to pay "$75.00 a month toward costs" and extended his probation "until all monies have been paid in this case."

(4) On April 22, 2003, G.L.C.'s probation officer filed a fourth delinquency report. The court issued an arrest warrant on June 10, 2003, but G.L.C. was not arrested until October 2, 2003. He remained in custody until November 13, 2003, when the court ordered the report withdrawn. The court continued G.L.C. on probation and credited him with $860 toward the moneys he owed, a credit of $20 per day for the 43 days he had spent incarcerated.

(5) On May 13, 2004, G.L.C.'s probation officer filed a fifth delinquency report. G.L.C. filed a motion to dismiss for lack of jurisdiction, "due to the passage of more than 5[sic] years since G.L.C. was placed on probation." On July 23, 2004, the trial court denied the motion to dismiss and conducted a revocation hearing. The court then revoked G.L.C.'s probation, on the grounds that he had failed to meet his financial obligations and that he had failed to report to the State probation office. The court ordered G.L.C. to serve his original three-year sentence and credited him for 70 days he had spent in jail.

G.L.C. contends that the trial court lacked jurisdiction to revoke his probation more than seven years after he was placed on probation. He argues that the term of his probation commenced at his sentencing and that, pursuant to § 15-19-6(a)(2), Ala.Code 1975, the maximum amount of time he could serve on probation as a youthful offender was three years. He argues that all proceedings that occurred after he was released from jail on October 25, 2001, were void.

The State argues that the trial court retained jurisdiction to revoke G.L.C.'s probation because, at the time the revocation proceedings were initiated, G.L.C. had not yet fulfilled the conditions of his probation nor had he been formally released from probation. The State further argues that the term of G.L.C.'s probation was tolled for various lengths of time and that the circuit court extended it twice because G.L.C. failed to fulfill all the conditions.

Section 15-19-6(a), Ala.Code 1975, sets out the alternative sentencing provisions that are available when the defendant is adjudged a youthful offender and the underlying charge is a felony. Raines v. State, 294 Ala. 360, 317 So.2d 559 (1975). The trial court may:

"(1) Suspend the imposition or execution of sentence with or without probation;

"(2) Place the defendant on probation for a period not to exceed three years;

"(3) Impose a fine as provided by law for the offense with or without probation or commitment;

"(4) Commit the defendant to the custody of the Board of Corrections for a term of three years or a lesser term."

§ 15-19-6(a), Ala.Code 1975 (emphasis added).

Section 15-22-54(a), Ala.Code 1975, sets out the comparable probationary periods for adult criminal defendants. The statute permits an adult who is convicted of a felony to be placed on probation for a maximum of 5 years. That term "continue[s] after the initial period of probation expire[s], until he satisfactorily fulfill[s] the conditions of his probation, receive[s] a formal discharge from probation or the five-year maximum period passe[s]." Sherer v. State, 486 So.2d 1330, 1332 (Ala.Crim.App.1986) (emphasis added).

In Owens v. State, 728 So.2d 673, 679 (Ala.Crim.App.1998), this court stated the following with regard to § 15-22-54(a):

"We acknowledge, of course, that a probationer cannot be sentenced to more than the maximum statutorily allowed time — that is to say, if no intervening event happens to toll the probation period, then the period cannot exceed two years from the date of sentencing for a misdemeanor and five years from the date of sentencing for a felony. If, however, before the expiration of the original court-ordered probation period or before the expiration of the maximum statutory probation period, revocation proceedings are...